Lawrence Spiwak

With the Infrastructure Investment and Jobs Act of 2021 providing sufficient funding to deploy broadband to nearly every household in the nation, the Digital Discrimination provisions contained in Section 60506 of the statute are a curiosity. Nonetheless, Congress directed the Federal Communications Commission to write rules implementing the statutory provision. The FCC recently released draft final rules implementing Section 60506 in anticipation of its November 2023 Open Meeting which adopt a somewhat standard disparate impact analysis.

The debate over how internet platforms moderate content has reached a fever pitch. To get around First Amendment concerns, some proponents of content moderation regulation argue that internet platforms should be regulated as “common carriers”—that is, internet platforms should be legally obligated to serve all comers without discrimination. As these proponents regularly point to communications law as an analytical template, it appears that the term “common carrier” has become a euphemism for full-blown public utility regulation complete with a dedicated regulator.

According to the DC Circuit’s logic, the Federal Communications Commission’s jurisdiction over broadband Internet access services now resides in some sort of regulatory purgatory.

[Commentary] In a few weeks, it is widely expected that the Federal Communications Commission will release a draft order reversing the Obama Administration’s controversial 2015 decision to reclassify broadband internet access from a lightly-regulated “information” service under Title I of the Communications Act to a heavily-regulated common carrier “telecommunications” service under Title II of that same Act. As with the original 2015 decision, a court appeal of this policy change is a virtual certainty. Yet, even though the DC Circuit in USTelecom v.

[Commentary] Under the plain terms of the Communications Act, the Federal Communications Commission is obligated to review industry mergers and acquisitions to determine whether such transactions serve the public interest. Given that the FCC is “entrusted with the responsibility to determine when and to what extent the public interest would be served by competition in the industry," the commission’s merger review serves a useful and important function.

In these frugal times, many Americans are forced to do more with less. Given the pernicious effect of the growth of the regulatory state, it is time for the government to do less with less. As such, our recommendation remains the same now as in 2011: As Congress and the Trump Administration struggle with the difficult policy decisions of how to shrink federal spending and get the economy moving again, perhaps an excellent place to start would be to investigate responsible cuts in the size of the federal regulatory bureaucracy.

[Commentary] To his credit, President Donald Trump has appointed sitting Commissioner Maureen Ohlhausen as acting chair of the Federal Trade Commission. Given all of the things on the FTC's plate, President Trump would be wise to make Ohlhausen's appointment permanent. Like her newly appointed counterpart, Chairman Ajit Pai at the Federal Communications Commission, Ohlhausen is one of those few public servants who truly is a "lawyer's lawyer," with a profound respect for the bounds of her agency's statutory mandate. Indeed, while often cast as a regulatory agency, the FTC is better described as a law-enforcement agency. And, given such great power, the FTC must wield it judiciously.

Like it or not, the issues facing the FTC are complex and need to be approached with analytical rigor and honesty. President Trump has already made an excellent pick with Ajit Pai as chairman of the FCC. He should bookend the set by making Maureen Ohlhausen permanent chair of the FTC.

[Lawrence J. Spiwak is the President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies.]

[Commentary] As one of his first actions in office, President Trump selected Ajit Pai to be the next chairman of the Federal Communications Commission. It was a phenomenal choice. Chairman Pai is a “lawyer’s lawyer” with significant experience in the field and, as such, is one of the most qualified persons ever to hold the post in recent memory. It is wonderful to see that hard work, expertise, and merit still matter in American politics.

The incoming chairman certainly has a lot on his plate. I would submit that among Chairman Pai’s most pressing concerns must be to repair the commission’s tattered reputation as an expert agency worthy of public trust. Pai’s predecessor, Democrat Tom Wheeler, had no regard for due process and no reluctance to lie to the American people to achieve political outcomes. As a result, there are growing calls to curtail—if not outright abolish—the FCC and to transfer those responsibilities to the Federal Trade Commission and other federal agencies. While changing market conditions warrant serious contemplation about the nature and scope of FCC oversight, it is also important that we not throw the proverbial baby out with the bath water simply because the Obama administration cavalierly abused the public trust.

[Lawrence Spiwak is the President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies]

[Commentary] Two days after the election, Federal Communications Commission Chairman Tom Wheeler announced an aggressive agenda for the FCC's Nov 17 open meeting to push through some of his remaining high-priority items, including, among other things, mandating a massive rate reduction for Business Data Services without any economic justification for the naked benefit of select constituencies. As to be expected after a major election where the other party takes control, Senate Commerce Committee Chairman John Thune (R-SD), shortly thereafter wrote a letter to the FCC behooving Chairman Wheeler to refrain from acting on "complex, partisan, or otherwise controversial items" during the Presidential transition.

Telecom policy is a serious business and — as Chairman Wheeler's tenure as chairman amply demonstrates — the public interest is ill-suited by partisan leadership. Instead, President-elect Donald Trump should appoint somebody to lead the FCC who truly understands the economics of the business, respects the law and, most importantly, is committed to uphold every American's basic right to due process. If not, then just when you think the next chairman can't be any worse than the last — they will be.

[Lawrence J. Spiwak is the president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies]

[Commentary] Rather than give the Department of Justice — and, assuming jurisdictional issues are resolved, perhaps even the Federal Communications Commission— an opportunity to look dispassionately at the facts of AT&T’s acquisition of Time Warner, law and economics of the transaction, some consumer groups are going for the political jugular. But then again, who can blame them?

As FCC Chairman Tom Wheeler has actively encouraged such conduct by steadfastly choosing to ignore substance and view every major policy initiative from network neutrality to set-top boxes to municipal broadband through a political lens, this playbook appears to be quite successful. Still, ignorant sophistry is no excuse for ill-formed policymaking. Let's just hope that the new administration — regardless of party — rejects the politicized approach to telecom policy favored by the Obama Administration and returns to first principles: an honest, rigorous and dispassionate review of the transaction.

[Spiwak is the president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies]